Nelson v. Kendall County 2014 IL 116303


Appellate citation: 2013 IL App (2d) 120635.


            JUSTICE KARMEIER delivered the judgment of the court, with opinion.


      Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.


            This litigation stems from 2010, when the journalist who is the first named plaintiff here began making Freedom of Information Act requests for e-mails of Kendall County assistant State’s Attorneys and, ultimately, the State’s Attorney himself. Although some material was furnished, not all of it was provided, and eventually two separate actions were filed in the circuit court, which dismissed them. The circuit court’s ruling that the State’s Attorney’s office belongs to the judicial branch and is, thus, beyond the reach of the Freedom of Information Act, was challenged on appeal, where the appellate court affirmed the circuit court after consolidating the cases.

            The Kendall County State’s Attorney’s office had contended that it did not qualify, within the meaning of the Freedom of Information Act, as a “public body” which could, under the Act, be compelled to provide documents. In this decision, the supreme court said this theory cannot be squared with the law. The Act itself specifies that the term “public bodies” includes all executive bodies, and the office of the State’s Attorney has long been recognized as an executive body of the State. As public bodies, State’s Attorney’s offices must make their public records available as provided by the Act, although some items may be exempt as provided by that law.

            The supreme court said that the theory that the State’s Attorneys are part of the judicial branch is untenable. There is no sense in which State’s Attorneys can be regarded as part of the judiciary.

            The appellate court’s affirmance of the dismissal of these actions was reversed, and the cause was remanded for further proceedings.